Saturday, October 17, 2009

AP-Fairey News (UPDATED 2X)

The New York Times: "Lawyers for the visual artist who created the famous 'Hope' poster of Barack Obama have acknowledged that he lied about which photograph he based the poster on and that he fabricated evidence in an effort to bolster his lawsuit against The Associated Press, according to a statement released by The A.P. on Friday night" (emphasis added).

The AP's general counsel also says "Fairey’s counsel informed the AP that they intended to seek the Court's permission to withdraw as counsel for Fairey."Remember that in their answer to Fairey's complaint, the AP argued that he "deliberately misrepresent[ed] the source of the Infringing Works in [the] Complaint" in a "misguided effort to argue that Fairey made more substantial changes to the photograph ... than he actually did." Related post here.

As Bruce Boyden said way back in February, when this issue first came up, "it just plain looks bad to have a misstatement like this in the complaint."

UPDATE: Boyden reacts here: "It looks even worse if you destroy evidence to cover it up. And it looks even worse than that if you manufacture evidence. All for very little benefit. Fairey’s behavior here reminds me of insider trading cases where some billionaire risks prison in order to avoid a loss of $20,000. It’s also too bad for us copyright professors who were interested in the doctrinal issues here. I can’t see this case going much farther, and even if it does, the chances we’ll get a clean holding on fair use, copyrightability, or substantial similarity seem thin."

Ann Althouse says: "The copyright issue itself should remain the same, and it's an important one indeed. It's a damned shame that the banner for expansive fair use is being carried by someone who was dishonest and who tried to play the legal system. Why is he admitting his deception now? Presumably, he knew the manipulations would come to light one way or the other, and it was a strategic decision to reveal it this way."

Jim Johnson: "I still think that Fairey - without the lies - might well have won the fair use case .... After all, it was not even clear that [the AP] controlled rights to the relevant image, since it was taken by a free-lance photographer. Maybe Fairey thought some bluster might keep the whole mess out of court. Who knows? The lesson? Don't try this at home. I suspect, and HOPE, that the judge in this case will throw the book at Fairey for his shenanigans."

Daryl Lang of Photo District News: "Fairey’s admission resolves one of the strangest elements in the suit. Despite obvious evidence to the contrary, Fairey repeatedly cited the wrong AP photo as the one he used ...."

UPDATE 2: Sergio Muñoz Sarmiento: "Aside from the fact that he only strengthened the image of artists as clowns and buffoons in the eyes of judges and lawyers, Fairey’s recent actions could earn him serious consequences."